Office Depot Sends World's Worst DMCA Notice To Reddit

from the the-non-swastika-is-the-least-of-your-problems dept

I'm always amazed when lawyers send clearly bogus DMCA notices. It shouldn't be hard to figure out that doing so ends badly. I'm doubly surprised, however, when it comes from big companies that should know better. And, I'm quadruple surprised when one of these companies that should know better sends a completely bogus DMCA notice to a company that absolutely understands why the notice is bogus, and is also in a position to make the world know all about a company's bogus DMCA notice. That's what we have here. You see, this morning, Office Depot decided to send a DMCA to Reddit.

Yes, to Reddit.

Now, yes, it's possible that someone posted copyrighted material to Reddit, for which a DMCA could possibly be appropriate. But this isn't one of those cases. The complaint is about this r/circlejerk post by heisenberg69 from seven months ago. I imagine that post isn't going anywhere, but just in case it is, I've also embedded the screenshot that Office Depot helpfully included with the DMCA notice to Reddit. As you can see, heisenberg69 posted a link to this imgur image of not-quite a swastika over the Office Depot logo. We'll repost it here for you to see:

Of course, as the first comment points out, this isn't even a swastika. It's a sauwastika, the Buddhist symbol for peace. Basically, it's a backwards swastika. Either way, let's count the many, many, many ways in which this DMCA notice is bogus.

This is not copyright infringement. At all. Office Depot's Corporate Counsel Jared Namm appears to admit this at the very beginning of his DMCA notice. While he first says it "violates the copyrights and trademarks of Office Depot," at no point does he explain what copyright is violated, because he can't. He later points only to "the Office Depot trademark." But, you cannot use a DMCA for trademark. It is only for copyright. Pretending to use a DMCA claim for a trademark claim is an abuse of the DMCA.

Even if you look at the trademark issue, this is not a trademark issue. Making use of a logo in this manner is in no way an infringement on Office Depot's trademark. There is no "use in commerce." There is no likelihood of confusion. And there are many, many, many cases where simply parodying or mocking a logo of a company has been found to be non-infringing. Nazi-izing someone's logo for the purpose of mocking the company is not infringement.

This is not copyright infringement, part two. After trying out the bogus trademark claim, Office Depot's Namm claims that the posting is in violation of Reddit's terms of service. Even if this were true, that's not a reason to send a DMCA notice.

This is not a violation of Reddit's terms of service. Again, even if you could send a DMCA based on a violation of the terms of service, this is not a violation of the terms of service. Office Depot argues that this is "defamatory, abusive, harassing, racist, hateful or violent." I guess you could try to make an argument for "hateful," but it's difficult to see how that reaches the level of a terms of service violation.

Merely mocking a company such as Office Depot for having Nazi-like attributes is not hate speech. It may not make much sense, but that's not how it works. It's even more ridiculous when you realize this isn't even a swastika. Amazingly, even Office Depot admits this in the DMCA letter, which Namm adds as if it's a helpful tidbit:

A little history on the symbol as well: this particular design is not Nazi related but the original Sauwastika (facing left) vs. the Nazi Germany alteration (facing right). The left facing has been a symbol in Hindu/Buddhist art/texts that predate the Nazi usage by centuries. While this does not dismiss the use of the symbol in conjunction with our logo, in reviewing the posts it appears there is confusion on the symbol, but heisenberg69's posting of the symbol over the Office Depot logo associates Office Depot with Nazi Germany.

So, Office Depot admits this isn't a Nazi symbol, and sends a screenshot in which the top comment, with the most votes on the thread, is pointing out that this isn't a Nazi symbol... and then still says this posting associates Office Depot with Nazis.

Jared Namm swore "under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." Yet, despite mentioning copyright, nowhere does he name an actual copyright that's been infringed, because there hasn't been one. While he may be able to skate out from under perjury by arguing that the second half of that penalty of perjury clause was "owner of an exclusive right," again no trademark law has been infringed and you can't use the DMCA for trademark anyway. It's not wise to swear under penalty of perjury to something that is almost certainly not true.

The image is not hosted on Reddit. But on Imgur. Which is a different company.

Oh yeah, and this was a Reddit r/circlejerk post from 7 months ago that didn't get that much attention then and has all but disappeared from view entirely. And now, due entirely to the absolutely stupid decision by either Office Depot Corporate Counsel Jared Namm, or someone above him in management who told him to do this and who failed to heed any suggestion that this was (a) not infringement and (b) a monumentally stupid move, he went ahead and sent this notice, practically guaranteeing that the post and the image would suddenly get renewed life and attention.

And, finally, sending a totally bogus DMCA notice to Reddit? Reddit, who as a community was perhaps the most instrumental community in bringing down SOPA, has no love for bogus copyright claims. Remember, Reddit is the community who organized the massive GoDaddy boycott that got GoDaddy to back down from its support of SOPA (and to eventually turn over almost its entire management team). Poking Reddit with a bogus DMCA stick for what appears to be no reason at all just doesn't seem smart at all.

Incredibly, Jared Namm's LinkedIn profile claims that he advises Office Depot on a variety of intellectual property and social media initiatives. I would imagine that picking a bogus fight with Reddit is not exactly the wisest of "social media" strategies.

Re: Re: Re:

Re: Re:

When a company hires an ad agency to create something, the copyright is assigned to the company who paid for it to be created. Even if a company creates something in-house, it's still an employee that they hired who does it. This is how it works. My point being, what's your point?

Nonsense.

It is physically impossible to “own” information.A trademark, copyright or patent is a temporary (and otherwise illegal) [pseudo-]monopoly and [pseudo-] artificial scarcity (also a crime) that has only still not been put down because its complete lack (and physical impossibility) of enforcability means that nobody had the pressure to form the urge to stop it.„Property“ has no meaning for information, just as it would have no meaning for a house that everybody could copy infinitely, no work required, without the physical possibility of anyone else even being able to notice. It is infinitely abundant and did cost absolutely nothing, and hence is literally worthless.

Unfortunately, the “average” NPC drone is too retarded to comprehend this difference between real physical matter/energy/work, and purely virtual/imaginary information.

This IS a "social media initiative": advertising ploy.

Based on the notion that all exposure is good. The only real additional piece of evidence is that this a seven month old piece that makes no difference. -- Isn't it always the case with these that they're against sites with big readership and a forgotten piece? Why don't you start tabulating data on these, Mike, to spot patterns, rather than just go rabbiting off on each new anomaly like clueless noob?

Otherwise, you're stuck with the "crazy lawyer" explanation that Mike goes with, but seems to me doubtful that this lawyer is any less savvy than Mike.Mike claims to have a college degree in economics, can't ya tell?

Re: This IS a "social media initiative": advertising ploy.

"all exposure is good" is a horribly inaccurate and completely outdated bit of advice when any idiot with a Twitter account and a chip on their shoulder can turn millions of people against you with a few keystrokes.

No surprise here!

Why not file a complaint with State Bar?

It's clear that either Jarrod either doesn't know the difference between copyright and trademark law OR he knows the difference and is filing a frivolous complaint. Either one show he's incompetent or knowing attempting to deceive the court.

Maybe he should be practicing law. One less scumbag lawyer out of this might send a message.

Re: No Teeth

And yet, we will see that NOT ONE SINGLE THING will happen to Office Depot for sending an absolutely, irrefutably 100% FALSE DMCA takedown notice.

Oh, not quite. We've been doing business with them for a long time, and we buy all kinds of stuff. But they do have competition. I have forwarded this information, along with a recommendation that we exercise our options, to purchasing. Given that I've spent considerable time and energy educating them about who NOT to do business with, and why, I think they'll be responsive.

I hate this revisionist history crap!

There is no such thing as a 'bad' or a 'good' swastika. There never was a distinction in India of left or right facing. All such variations were good luck.

A long time ago, someone who wasn't fully informed said there was a thing called a suawastika, we learned that wasn't true, but this continues today as a common misconception and needs a concerted effort to stamp out. And this is all because we're uncomfortable about the atrocities committed by the nazi regime!

Please just read Wikipedia for god's sake! It explains everything! You can clearly see that the distinction of left and right facing swasticas is wrong.

Furthermore I will take this chance to mention that the symbol we call a swastica was a good luck symbol in Europe before the nazi party, a good luck symbol in India, a significant symbol to a tribe of native Americans who chose to abandon its use after World War II in respect for the evils perpetrated by the nazi party and has been used by many and very disparate groups for thousands of years! We cannot take the fact of what that symbol was to so many out of our history simply because once upon a time some bad people used it to try for good luck, which is the reason the nazi party adopted the symbol.

Re: I hate this revisionist history crap!

What next? How many hate groups can you name that continue to target our passive black brothers and Islamic neighbors and "friends"? The families of love ones who died by thier hands should show some tolerence for these misunderstood freedom fighters.

a lot of times it's just about billable hours

It's a stupid untenable take down notice, BUT it generates billable hours for the law firm, which no doubt will bill Office Depot for all its "hours" spent finding to so-called violation and composing the weak DMCA.

I think people don't appreciate how a lot of the bogus DMCA and other legal stuff are just about generating billable hours. To me, baseless legal threats etc should cause the offending attorney to be debarred after X instances.

This reminds me so much of other fee-generating licensed professions, such as stock brokers who churn and hedge fund's with fees so high their victim clients would have made lots more money with simple Vanguard low-fee index funds.

Such bogus DMCA and other bogus legal threat letters should at least trigger notifications the lawyer's client that his or her lawyer/law firm is billing them for no good reason.

I think billing for civil law work is out of control.

Two property developers I know recently finished cases in which the lawyers took ALL or nearly all of the money from the verdict/settlement to cover legal fees for the case. In one case, a condo complex really only needed $10k from the developer to fix a sewage system problem but instead believed a lawyer who persuaded the condo assoc to sue the developer for $1 million. The condo assoc won the $1 million but the lawfirm took ALL of it, leaving the condo complex without even the $10k fix for the sewage problem, which the developer had offered gratis before the case. Another developer I know bought a high-rise building and sued the seller for $600k and won, but his lawyer's fees were $500k!

Hedge funds and other financial pros also mostly rip off their clients, as do so many civil lawyers who don't care if their cases settle or lose in trial as long as they get to bill invoice for billable hours.

Maybe It's Phony?

With all the errors of grammar, style, and legitimacy, I'd suggest that the notice is bogus and didn't even come from a lawyer retained or employed by Office Depot. Is there any evidence that the notice is validly from OD?

Kurt Greenbaum

To add to point 9, let's also not forget that Aaron Swartz, a man who hacked MIT to Robin Hood a bunch of academic books and papers, was a founding father of reddit. So, attempting any sort of censorship in reddit's view is not always a smart idea.

Cupcake Hooters

NEVER open a business letter with: TO WHOM IT MAY CONCERN

It is the letter writer’s job to know exactly who they’re writing too. Furthermore, such a letter should be sent via certified mail so the sender knows the addressee received the letter. Laziness is no excuse to ignore proper business letter writing etiquette.

If someone would hold them accountable for their signature "under penalty of perjury" then these wouldn't be signed by lawyers anymore. You've got malpractice, FRCP rule 11 sanctions based on failure to factually investigate, frivolousness, intent to harass; intentional interference with third party relations; 42 USC 1983 civil rights as under color of federal government DMCA statute depriving us of our collective free speech (and corollary free reading) rights (as the image is now censored falsely under color of law). Can we please: 1)boycott the shit out of Office Depot; 2)report him to Florida Bar, ethics commission; 3)push for reforms on DMCA? There's is a legitimate 1st amendment right of parody, of nominative trademark fair use, of de minimis un-copyrightability of small words and phrases, and if this jackasshole is going to hold himself out to the world as an "intellectual property specialist" with "copyright" experience (which is an ethical violation itself) then let's hold his goddamn feet to the fire and let him suffer the consequences so other idiots will do at least a modicum of googling before filing these things. It's no joke, he's speech-blocking and he should know better. I'm pissed.

The Copyright Infringement Claim is Legitimate

The DMCA takedown notice appears to be made in good faith. Most attorneys would presume that the logo you see was lifted from the OfficeMax website or another property. It appears that the swastika was drawn on top of the logo, which doesn't change the nature of the fact that the use of an OfficeMax image is still infringement. That's how you get to the DMCA.

The extra items added in was a way of informing the company about the violations of its terms of use to make it easier for Reddit to take down the offending image. While I am completely into the rights of free speech, I can understand why OfficeMax isn't happy and felt a need to do something about it. I'm apprehensive to say this, wondering how many will get angry at what I'm saying. How many of you would want to have images of your own small company's brand with a swastika on it being seen anywhere? People might get the wrong idea. I'm sure many would even write to Office Depot complaining about the company adding a swastika on their logo, lol. Seen it before - it's all in the realm of possibility! Don't think this is a big deal...

Re: The Copyright Infringement Claim is (Not) Legitimate

Why would Office Depot send a violation notice to the website, not the user? Why would they change their story (what was that? was that three?) multiple times?

"images of my SMALL COMPANY (hah. Office Depot. Gotcha) branded with a [thing that looks like a swastika to an ignorant person]" is not a copyright violation. It's a modification posted to an internet message board as an expression of one's opinion.

Re: The Copyright Infringement Claim is Legitimate

The DMCA takedown notice appears to be made in good faith. Most attorneys would presume that the logo you see was lifted from the OfficeMax website or another property.

First, it's Office Depot, not Office Max. Second, using that logo cannot be copyright infringement, only (possibly) trademark infringement. The DMCA covers only copyright, not trademark, so the lawyer either has no idea what he's doing or sent the notice in bad faith.